Draft Competition (Jersey) Amendment Law 202- (P.69/2025): comments

STATES OF JERSEY

DRAFT COMPETITION (JERSEY) AMENDMENT LAW 202- (P.69/2025): COMMENTS

Presented to the States on 7th November 2025

by the Economic and International Affairs Scrutiny Panel

STATES GREFFE

2025  P.69 Com.

COMMENTS

The Draft Competition (Jersey) Amendment Law 202- [P.69/2025] (hereafter referred to as "the draft Law") was lodged au Greffe on 11th September 2025 by the Minister for Sustainable Economic Development (hereafter referred to as the Minister) and is scheduled for debate at the States' sitting commencing on 11th November 2025.

The Economic and International Affairs Scrutiny Panel (hereafter referred to as "the Panel") has examined the draft Law and has formed these Comments to help inform the Assembly's consideration of the proposed changes.

Background and purpose

The Competition (Jersey) Law 2005 (hereafter referred to as the "2005 Law") was established to encourage fair competition in the provision of goods and services across the Island. Established by the Competition Regulatory Authority (Jersey) Law 2001, the Jersey  Competition  Regulatory  Authority  (hereafter  referred  to  as  "the  JCRA") oversees the enforcement of these regulations, ensuring that businesses operate fairly and that markets function effectively for consumers.

The proposed changes within the draft Law have been informed by:

• a white paper consultation undertaken by the Department for the Economy in 2023. Furthermore

• feedback from further Government consultation in 2024

• recommendations made by Oxera

• previous JCRA consultations

• an independent review by Kassie Smith KC

In a letter from the Minister to the Panel on  27th February 2025, he explained that the draft Law focuses on "enhancing the operation of the Island's mergers and acquisitions regime, improving the JCRA's ability to conduct market studies in a wide range of economic sectors and supporting efficient and effective enforcement in certain cases by enabling the JCRA to accept legally binding commitments' from businesses regarding their future conduct to address any competition issues."

As outlined in the high-level summary of the draft Law, if adopted, it will achieve the following:

• make a number of changes to improve the operation of Jersey's mergers and acquisitions regime;

• create powers for the Authority to accept commitments from businesses to address any competition concerns that have been identified; and

• introduce a formal market studies framework to enable and empower the Authority to keep local markets under review1

The proposed changes to the mergers and acquisitions regime reflect the specific nature of Jersey's markets. Together with planned amendments to secondary legislation, they are intended to reduce the administrative burden on businesses and allow the JCRA to

1 Draft Competition (Jersey) Amendment Law 202

focus its resources on transactions that are most likely to pose the greatest risk of negative impact on competition.

The proposed commitments process is based on established practice in the UK and EU. It offers a faster and more flexible way to address competition issues, enabling earlier intervention and quicker outcomes where businesses offer commitments to the JCRA at an early stage.

The introduction of a formal market studies framework will also give the JCRA an additional tool to assess whether competition is working effectively within different sectors, outside the context of formal merger review or antitrust investigations.

The draft Law also includes a number of technical and consequential amendments such as general interpretation, exemption powers of the Minister, interim measures, grant or refusal of approval, financial penalties and civil action and more. Of particular note is a new provision allowing the 2005 Law to be amended in future by Regulations. Although there are currently no plans to use this power, it would enable future updates to be made more efficiently than through primary legislation, while still requiring the approval of the States Assembly.

Scrutiny work to date

A previous iteration of the Panel received a first private briefing from the Department of the Economy on the 14th April 2023, being informed of the need for a robust, transparent and supportive regulatory environment to allow the JCRA to administer and effectively  enforce  law  as  well  as  improve  efficiencies  by  focusing  on  larger transactions.

A follow-up letter written to the Minister on the 19th April, sought clarification on the powers held by the JCRA, consultation methods, and the potential impacts of the proposed changes on resourcing and financing for both the JCRA and the Government of Jersey.

Of note, the Panel was informed of the following:

"It is not expected, at present, that there will be substantial financial implications for the Government of Jersey resulting from the proposed legislative changes. By way of example, as a result of the proposed changes in the mergers and acquisitions area, fewer transactions may be notifiable, reducing the JCRA's workload in this area. However, at the same time, there may be more activity in other areas (e.g. market studies) that are funded by Government. Furthermore, it is acknowledged that, if the proposed new criminal cartel offence is introduced, the JCRA may require assistance in order to pursue criminal charges (for instance from the States of Jersey Police)."

"Under the proposed new regime for market studies, the independence of the JCRA will be maintained, even in contexts where the study is requested by the Minister, by requiring the Minister to provide his or her reasons for requesting the study and consulting the JCRA on the terms of reference for the market study"

The current Panel received subsequent private briefings from Government officers on 3rd December 2024, 3rd July 2025 and 14th October 2025. The Panel sought feedback from the officers on various issues including settlement procedures, mergers, and

matters relating to the public interest. Following the briefings the Panel found nothing of  obvious  contention  within  the  proposed  legislation.  The  Panel  also  met  with representatives of the JCRA on 11th July 2025, which confirmed the information previously received and their support for the draft Law.

Panel observations

During the briefings, the Panel sought clarification on how the proposed market studies framework would operate in practice and whether it had the full support of the Minister. Officers confirmed that this element had Ministerial backing and was regarded as an important part of the JCRA's toolkit, enabling the authority to better monitor markets and address issues where they arise. The Panel questioned how potential conflicts of interest  would  be  managed,  particularly  where  a  Minister  might  request  a  study involving a sector within their portfolio. Officers explained that the draft Law contains safeguards to ensure that conflicts of interest are managed and mitigated. One example provided of such a safeguard is that before a market study can be initiated by the Minister, the Minister must consult with the JCRA first and the initiator of the market study must publish clear terms of reference setting out the scope of the study and timeframe  for  completion.  At  the  end  of  the  market  study  the  JCRA  must  seek consultation on its draft findings and once the report is published the Minister must respond to any recommendations though this is non-binding. The Panel is reassured that the  appropriate  safeguards  are  in  place  to  preserve  the  JCRA's  independence, particularly when studies are requested by the Minister.

The Panel also notes the proposed changes to mergers and acquisitions, which aim to ensure that Jersey's system is both proportionate and robust. Officers explained that thresholds for mandatory notification will be reviewed to focus on transactions with material competition effects. The applicable thresholds are set out in the Competition (Mergers and Acquisitions) (Jersey) Order 2010 and the proposals in the draft Law are closely linked to ongoing work around the Order 2010. The draft law introduces a new power for the JCRA to review and, if content, approve transactions retrospectively, where a particular merger or acquisition has erroneously not been notified to the JCRA. The Panel was further advised that the draft Law includes the ability for the Minister to introduce a "call-in" power, allowing the JCRA to review certain small mergers and acquisitions below the mandatory thresholds within a short period of time. The Panel is supportive of these measures and understands that the operation of any call-in power should be transparent, time limited, and based solely on competition considerations.

The Panel questioned whether the proposals could unintentionally negatively impact small businesses and Officers assured the Panel that the increase in turnover thresholds for notification would reduce the regulatory burden for the majority of firms, benefiting around ninety per cent of businesses that would no longer need to notify transactions. It was therefore expected that this element would, if anything, assist small businesses by easing some of their administrative and regulatory obligations.

The  Panel  welcomed  the  introduction  of  a  formal  commitments  regime,  a  new mechanism  that  allows  the  JCRA  to  accept  legally  binding  commitments  from businesses to address competition concerns without needing to proceed into a full investigation. The Panel agrees that this represents a flexible and efficient enforcement tool, consistent with international best practice, and notes that the JCRA will be required to undertake public consultation before accepting commitments, ensuring transparency and accountability.

The Panel notes that the draft Law proposes the Minister may, after consulting the JCRA, exempt a particular merger or acquisition from the requirement that it must be approved by the JCRA. Also, that the draft Law, if adopted, would give the Minister powers to attach conditions to any exemption. However, the use of these powers is an element that the Panel will be seeking further clarification on during the debate. The Panel recognises the importance of ensuring clear governance in the exercise of these powers and was advised by officers if competition matters affect other Ministerial portfolios, then there would be an expectation of the Minister to engage and collaborate with their fellow Ministers.

The Panel notes that the draft Law extends the existing offence of providing false or misleading information to cover two additional situations where a person applies for retrospective approval of a merger or acquisition, and where information is provided in relation Minister prescribes new types of mergers or acquisitions which require prior approval  by  the  JCRA.  The  offence  applies  where  information  is  knowingly  or recklessly false or misleading and is punishable by a fine following a conviction and the level of fine will be determined by the Royal Court.

Regarding commitments the Panel noted that the JCRA may impose a financial penalty of up to 10% of an undertaking's turnover for a breach of commitment. In addition, the JCRA may impose a penalty on a person who fails to comply with a request for information  during  a  market  study,  and  that  person  commits  an  offence  if  they knowingly or recklessly provide information in response to the notice that is false, misleading or incomplete. Officers reassured the Panel that appeal rights to the Royal Court are retained, providing safeguard for businesses and individuals.

The Panel is satisfied that adequate safeguards exist to maintain the independence of the JCRA and to ensure proportionality in enforcement. The Panel has not identified any areas  of  major  contention  within  the  draft  Law  and  welcomes  the  collaborative engagement shown by officers throughout the scrutiny process.

Conclusion

The Panel has presented these Comments to further inform the Assembly's debate of the draft Law. Should the draft Law be adopted, the Panel understands that this will aid in improving efficiency in the regulation of competition within Jersey and agrees that it is sensible to update the 2005 Law as per the proposals. The Panel notes that through consultation with various stakeholders, technical amendments to the 2005 Law have been widely supported.

The Panel would reiterate the need for the JCRA to maintain its independence regarding the process around Market Studies but accepts reassurances that there are sufficient safeguards in place to ensure this.